October 17, 2009

To make the poster he needed to "reference" — his verb — a photo of Obama, and now he wants to defend that use under the Copyright Law. To promote the acceptance of a broad definition of "fair use," it would help if he were thought of as a good guy — the artist, who should be supported in his creative endeavors and given access to the raw materials that he uses for the general benefit of society. And now we see that he has infected his repution with wrongdoing:

"Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image," Fairey said. "The AP claimed it was one photo, and I claimed it was another."

New filings to the court, he said, "state for the record that the AP is correct about which photo I used...and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted other images."

In February, the AP claimed that Fairey violated copyright laws when he used one of their images as the basis for the poster. In response, the artist filed a lawsuit against the AP, claiming that he was protected under fair use. Fairey also claimed that he used a different photo as the inspiration for his poster.

The copyright issue itself should remain the same, and it's an important one indeed. It's a damned shame that the banner for expansive fair use is being carried by someone who was dishonest and who tried to play the legal system. Why is he admitting his deception now? Presumably, he knew the manipulations would come to light one way or the other, and it was a strategic decision to reveal it this way.

Obviously, this is also an occasion to craft jokes analogizing the Fairey mess to what the subject of the poster is doing, with all the usual sarcasm over the word "hope." Not that any of that mess is poor Obama's fault.

180 comments:

I'm not a lawyer. But what approach to fair use of images promotes their widest production and availability? Given that the net (and their own political fatuousness) is driving journalists out of business, what should the rules be to encourage both producers and wide "visual speech"?

This is an interesting addition to the set of facts in the case. In my experience the Courts do not make their decision based upon a piece of fradulent evidence having been exposed as such during the trial. For some reason the Judges like to show their intellectual powers to ignore that and rule as if it did not affect the original issues in the case. Go figure.

"Obviously, this is also an occasion to craft jokes analogizing the Fairey mess to what the subject of the poster is doing, with all the usual sarcasm over the word 'hope.' Not that any of that mess is poor Obama's fault."

Oh come now, of course, it's all Obama's fault. I actually woulda liked the guy if, when all this cultish shit started, he just woulda said, "Cut it out!" But no, except for once (when he said it had gotten out of hand) he went along with it, and the rest is history.

Through him, and my other experiences, I have learned this is a country that is highly susceptible to cults, manias, fads, and uncontrolled passions. We are an immature people, most definitely, in need of a strong leader with common sense.

What we got instead, like Fairey and many of Obama's other followers, was a fool and a liar who thought devotion and/or popularity was the equal to, or could actually replace, substance.

I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted other images."

Isn't that spoliation of evidence? I don't see the point of sanctioning him with adverse evidentiary inferences here, since I don't see how the underlying fair use argument is actually affected, and he's already conceding the fact. But he should at least be hit with severe monetary sanctions.

It's also a crime. It's a misdemeanor in California (Section 135 of the Penal Code) and I think it's treated analogously in all the other states.

Can you imagine seeing something that looks exactly like your work elevated to an iconic status, and not getting credit for it ??

The original photographer (Mannie Garcia?) isn't a well-known name like Sheperd Fairey, but I don't think Fairey has claimed he didn't work off a Garcia photograph. He's claiming fair use after all. And until just now, was apparently claiming that he worked off a different photograph by the same photographer. But was lying.

The funny thing is that back when artists were actually skilled craftsmen, lifting other people's work was considered an act of respect towards the original artist. After all, you couldn't lift from Rembrandt or Bach unless you were skilled enough to carry it off....But now that success in the arts is more a matter of connections, random chance, and an overwrought "Artist's Statement" than anything else (if Fairey had any real skill, he wouldn't have had to copy photos), they fight like lapdogs over table scraps. So a little part of me really hopes Fairey wins, if only to hasten pomo's death through the irrelevance that results from ubiquity...

STATEMENT ON ASSOCIATED PRESS FAIR USE CASEIn an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in copyright laws, I wanted to notify you of a recent development in my case against The Associated Press (AP).

On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia, through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image. The AP claimed it was one photo, and I claimed it was another.

The new filings state for the record that the AP is correct about which photo I used as a reference and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong.

In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner.

I am very sorry to have hurt and disappointed colleagues, friends, and family who have supported me in this difficult case and trying time in my life.

I am also sorry because my actions may distract from what should be the real focus of my case – the right to fair use so that all artists can create freely. Regardless of which of the two images was used, the fair use issue should be the same.

Plagiarism is the deliberate passing off of someone else’s work as your own, and Shepard Fairey may be unfamiliar with the term - but not the act. This article is not about the innocent absorption of visual ideas that later materialize unconsciously in an artist’s work, we do after all live in a maelstrom of images and we can’t help but be affected by them. Nor am I referring to an artist’s direct influences - which artist can claim not to have been inspired by techniques or styles employed by others? What I am concerned with is the brazen, intentional copying of already existing artworks created by others - sometimes duplicating the originals without alteration - and then deceiving people by pawning off the counterfeit works as original creations.

Hopefully the attorneys for AP have looked at the referenced link, which leaves no doubt about Fairey's actions.

Gary said...In legalese does this mean he lied or was it an honest mistake on his part? Does it make a difference in the case? Is there such a thing as mistaken deception?

Gary, it is ok to make an honest mistake* and assuming his explanation is correct, he would have been fine if his attorneys had submitted a correction to the court and the AP when he realized his mistake. But allowing the false fact to remain uncorrected is a problem for him and altering documents to try and hide the mistake is a big problem--statements in papers are made under oath, just like testimony, and lying is perjury.

The judge has latitude to decide how significant this is, but at a minimum he will take this into account for all Fairey statements and the AP's attorneys will no doubt urge the court to disregard everything he says.

*The court does not distinguish between what you know and what you should know--if you should know something, as far as the court is concerned, you did know it.

What we need is a leader who will promise us misery and deliver... A Republican who, unlike George Bush, will really, really, REALLY, REAALLY fuck things up! None of this sissy stuff with a measly terrorist attack that kills thousands and a wimpy 50% drop in the Dow. We need a Republican leader who will promise to be even MORE incompetent than that!

I'm not a supporter of Obama or an apologist for Fairey's apparently willful deception here--although I think Fairey has produced some arresting images--so what strikes me is the frenzy of reflexive Obama-bashing here, or, as Bush supporters used to call criticism of their beloved fuhrer, "Bush Derangement Syndrome," this thread is one long spasm of "Obama Derangement Syndrome."

The topic is about Shepherd Fairey and his use of appropriated imagery and his apparent lies regarding that use. But what results is not a discussion of the ethics of his actions, or the pros or cons of artists who use appropriated imagery--and in this time, when collage techniques have found their way into virtually all art forms, this would be a wide-ranging discussion--but instead, a few pertinent comments aside, sneering and non sequitur disparagements of Obama and his campaign message of "hope," which is hardly unique to Obama, but is the bedrock campaign message of every politician running for office, whether overtly articulated or not.

The "mmm mmmm mmmm" stuff comes from that video of those kids singing a song about Obama. Apparently "mmmm mmmm mmm" was part of the song. (I haven't listened to it.)

I really hated "sing along time" when I was a kid. The songs they pick for little kids to sing are always so lame and cheesy, and performing for adults always felt humiliating to me, as if I were a pet.

They were dying and needed to shed whatever parts still proved useful to more able producers, and then die.

Now they are a zombie corporation that competes unfairly and profits only through political connections, that is, fascism.

Your exaggeration of fascism notwithstanding, GM had been leading the domestic auto industry (and by extension, a significant portion of the nation's economy) to oblivion for at least 4 decades.

If you honestly think there wasn't a good degree of graft in all that, and in continuing to perpetuate GM's bullshit through the shadier means that had been employed all this time, well, then I suppose you should feel lucky for living a few hundred miles from Detroit, rather than right in the city.

Detroit has been living in a fantasy for all this time. Obama let them in on the truth more directly than any Republican would have.

The only thing I never counted on was the degree to which Detroit's fantasy was contagious and caught on to other parts of the country that hadn't made of for GM's cronyism and incompetence by allowing the foreign manufacturers to move in.

What many of us are reveling in is the fact the most obvious and visible symbol of the Obama campaign was based on lies, deceit and theft. Fairey's image thus becomes appropriated by those in opposition to Obama, because it represents the reality of the man (Obama) himself.

Your exaggeration of fascism notwithstanding, GM had been leading the domestic auto industry (and by extension, a significant portion of the nation's economy) to oblivion for at least 4 decades.

Yes. And propping them up is supposed to help us how?

Detroit has been living in a fantasy for all this time. Obama let them in on the truth more directly than any Republican would have.

How? Most Republicans wanted GM to be let alone, to fail, as it would have done if it weren't for all its political connections, and (really) the political connections its workers enjoyed.

Now, it's true that Bush II behaved badly in handling the GM problem. He asked Congress to bail out GM, and Congress refused, so he just appropriated TARP funds for the GM bailout. That can't have been legal. But the Obama administration's political interference with the bankruptcy process was just as bad, and screwed over the GM creditors even worse.

Now, the Obama administration is propping GM up, and union ownership of the means of production is distorting the market into something even more grotesque than it was before, now that UAW-owned GM is being given a bizarre competitive advantage over Ford, which is stuck hiring from UAW. This isn't awakening from the fantasy -- it's just deepening the nightmare.

Everyone might have been better off had Obama allowed GM to just fail, Balfegor. I'm not so partisan and simple-minded as Pogo, etc. to have a problem admitting that. This was probably a favor to the unions and to soften the blow of the recession. Whether it creates distortions that mitigate our recovery... Who knows? Is that like asking whether or not unemployment benefits shouldn't have extended? Are they so distorting to argue against their existence, too?

Isn't there a difference between the short-term picture and long-term analysis?

If you want to engage in this stupid Nazi talk, try telling it to someone dumb enough to listen.

Physicians don't have to know anything salient about history. But if you want to talk about something outside your field, try getting a clue about it first. It will make you look like less of demagogue. But maybe as with fellow physician Che Guevara, demagoguery is just your sort of thing.

And as for knowledge of history, well, show me yours and I'll show you mine. Thus far you've demonstrated a complete lack of evidence that would support knowing a goddamned thing about socialism outside of standard university claptrap.

And as for knowledge of history, well, show me yours and I'll show you mine. Thus far you've demonstrated a complete lack of evidence that would support knowing a goddamned thing about socialism outside of standard university claptrap.

Ahhh.... yes. "(U)niversity claptrap". I suppose one's knowledge of history is to be judged by standards made up beyond the academy which is devoted to studying it.

I will take your nonsensical offer and propose an infinitely more sensible one. You show me one, count 'em "1" conservative historian of any renown who agrees with this bullshit Nazi talk re: Obama, and then I'll engage your retarded, self-serving metaphor.

Oh, and bonus points if he produces evidence of plans for mass extermination based on racial theories.

As a professional illustrator, it was my impression, when I saw Sheperd Fairey's poster and the photograph it was based on, that he had scanned the photo and used Photoshop techniques to colorize it in a striking way. In other words, it doesn't look as if he used the photo as a reference, or a starting point, but mechanically reproduced it in altered form. I may not be correct, as I haven't followed the case closely, but that's the way it appears to me. If that is what Fairey did, I think he should have gotten the permission of the photographer and come to an arrangement. Of course, he couldn't have anticipated what a phenomenon the poster would become, but since then he has not shown much integrity.

As far as the question of why other artists who used, say, a photo of Bush for similar purposes have not been sued, I suppose it is because the end product did not generate enough income to be worth the bother.

Who knows? Is that like asking whether or not unemployment benefits shouldn't have extended? Are they so distorting to argue against their existence, too?

Unemployment benefits are different, because they typically don't make the failures better off than the successes and thereby incentivise failure. There's a point at which they would, of course, and that's the point at which I'd start arguing against them. We're not there yet.

This meddling with GM rewards GM for incompetence and failure, by continuing to prop it up, and letting its greedy managers and workers lumber on a while longer, earning higher salaries and better benefits than the ordinary workers who are stuck with the bill. Meanwhile, (comparatively) successful companies, like Ford, are put at a competitive disadvantage, making it more like that they'll fail.

As a professional illustrator, it was my impression, when I saw Sheperd Fairey's poster and the photograph it was based on, that he had scanned the photo and used Photoshop techniques to colorize it in a striking way. In other words, it doesn't look as if he used the photo as a reference, or a starting point, but mechanically reproduced it in altered form

One thing's for sure. Pogo will have a very strong opinion about some matter involving politics - no matter how peripheral. He will try, with all his might, to make some facts fit into that opinion! And you will all agree!

But seriously, folks. He really is trying to be a disinterested observer.

He's like the physician who might have argued against double-blinding randomized, controlled trials. No bias is his fault! He has NO BIAS!

You show me one, count 'em "1" conservative historian of any renown who agrees with this bullshit Nazi talk re: Obama

Victor Davis Hansen. Not "bullshit Nazi talk" but national socialist? Yes: We can discern this same mandated egalitarianism beneath many of the administration’s recent policy initiatives. Obama is not a pragmatist, as he insisted, nor even a liberal, as charged.

Rather, he is a statist. The president believes that a select group of affluent, highly educated technocrats — cosmopolitan, noble-minded, and properly progressive — supported by a phalanx of whiz-kids fresh out of blue-chip universities with little or no experience in the marketplace, can direct our lives far better than we can ourselves.

Pogo wants to put his knowledge of history up against mine but he fails to note the existence of at least three well-known and respected historians who happen to be sympathetic to his purported ideology!

I that's not enough evidence that Pogo doesn't have a clue what he's talking about then I think he might need to go back to the part where he looks up the definition for "evidence".

Or else he could just be honest and admit that his partisanship obscures his perception. On entirely uncontroversial things, at that.

Keep the faith Che-- I mean, Pogo.

wv: lachbac

Flashback, pushback or something having to do with torture. Maybe a combination of all three.

Fine. Hanson has become less credible when opining on these sorts of things and should stick to military history (which he's much better at) but of course even the both of you note the difference made by injecting deliberately inflammatory, irresponsible and nonsensical comparisons to Nazis into what you say.

Shepard Fairey sounds like a nut. Claiming he copied another photo is hardly a defense to a complaint of copyright infringement. It's like confessing you shot the victim's brother. His lawyer should tell him to stfu.

As far as I can tell, Shepard Fairey copied the same pose that the AP photographer captured. I doubt that the AP owns the rights to all images of Obama with that particular head-tilt. The AP doesn't have excusive rights to images of Obama's face -- I'm gonna have to argue that only Obama has the right to his appearance.

Which reminds me: for decades now, portraitists have painted from photographs of their subjects rather than from life. Does that mean that they don't hold the copyright in any of their paintings?

Anyways, as long as Balfegor's interested in discussing it, I would have let GM fail too.

But I am not in full possession of all the facts (something that perhaps Pogo fancies he is) or repercussions or political rationales. That doesn't mean I would justify it either, knowing all that. But on the basis of GM being a crappy company which has been rewarded for failure all this time alone, sure, I would have let it fail.

And yet, I seem to possess the presence of mind to understand that the administration's refusal to go along with that doesn't make Obama Hitler. What a concept.

"Oh, sorry about getting in the way of your plan to make the perfect the enemy of the good. Perfection ain't happening anytime soon, son.

Refusing to realize that gives you one thing in common with your adversaries, though: A belief in utopianism."

(I apologize if I am merely stating the obvious), but there is a difference between the perfect, the good, the bad, and the worse.

For me, the issue is not that Obama's economic policies are not perfect, but that they will make a bad situation worse, since they are predicated on (back to the topic at hand) "hope", instead of real analysis.

Costs are ignored by making up growth rates that do not appear to be based on reality. Like the "create or save" nonsense when it comes to jobs. It's unquantifiable (how do you measure a "saved job"), and therefore, as Penn & Teller would say, bullshit.

As I said once before, O's "Economics of Hope" is not a dismal science. It is the stuff of Fairey Tales. (pun intended... sorry!)

Meanwhile, (comparatively) successful companies, like Ford, are put at a competitive disadvantage, making it more like that they'll fail.

Would the demise of GM and Chrysler help Ford? I would say that Ford would be unable to capture any large amount of their market share, rather the chief beneficiaries would be Honda, Toyota, Nissan, Hyundai, etc. That would mean that the market for North American-made automobile parts, sheet metal tooling, etc. etc. would suddenly contract, driving many suppliers and contractors out of business, making Ford's costs less competitive with the Asian manufacturers. Even after production layoffs, surviving vendors would have to restructure because one customer would need a lot less service than three.

This would also affect our national defense and homeland security, as suppliers of subassemblies and components for tanks, tracked vehicles, humvees, fire trucks, transport trucks, etc. went out of business. Recall that the automotive industry quickly retooled to make military materiel during WW II as well -- destroy that industry and you destroy that capability.

So failing to bail out the boneheaded GM would have meant disabling a valuable national asset to the benefit of Asian competitors, as well as making our nation less secure.

For me, the issue is not that Obama's economic policies are not perfect, but that they will make a bad situation worse, since they are predicated on (back to the topic at hand) "hope", instead of real analysis.

That's how GHW Bush and I felt about Reagan and his voodoo economics, but we survived that, at the cost of increasing the national debt at a rate unheard of in peacetime.

AP, get over yourselves. Fairey didn't use your picture. He changed your picture in satire to closely resemble what Socialists did and used that. But Fairey (he he he, that name is funny every time I write it) was out-satired by a broad swath of the population who ARE Socialist and took the image to their hearts and promulgated it further. To the rest of us it's still satire. The whole thing is; the original photograph, Fairey's change, the Socialists adopting it, and AP suing for it. Ha Ha Ha Ha Ha.

All your photo are belong to us!

God, I love this insane country. I do hope AP loses. L⚆⚆k, I just now said "hope."

FLS, are you coming up with detailed arguments and observations? Well, that stuff just won't do. In fact those things are all verboten! They amount to speculation! What is needed IS perfection, utopianism, ideological purity!

Nothing else will be tolerated.

And I wonder why Pogo is obsessed with seeing Hitler in Obama. I guess I should have considered the source.

A hammer in one hand, and a sicle in the other, and the eyebrows a bit more like Uncle Sam's, and a red white costume, with flared pants, and sunglasses, and Eldridge Cleaver pants, with high-heeled sneakers and an alligator hat.

According to Russell Kirk, conservatism demands the absence of ideology. And it's abundantly clear you don't have any idea what 'utopianism' means.

The characterization as an absolute evil of any and all politics not sufficiently to the right of "center", would qualify as an ideology according to almost any intelligent observer.

So to the extent that one's obsessive witch-hunts of such leftists and their "leftism" constitute one's own exercise in ideological purity, I think I'm justified in using the term "utopian" as a metaphor for "The World as Pogo would Construct it once it has been Purged of Leftists and 'Leftism'"

To the extent that you recognize and embrace the horrible shortcomings of both this world and the fantasy world which you have cleansed of political opposition, I suppose I should have instead referred to the world as you would prefer it as "dystopian" rather than "utopian."

Is that your contribution, put up along side what others have said to say about hope?

We've all seen Fairey's notion of what hope is, and no, I don't think it was satire. Satire was the version with "Nope" substituted in place of "hope." Satire was the "Snob" version (which used a different BHO pose). Maybe Fairey should countersue those artists? The lawyers would love it, so maybe it will happen since tort reform of any sort is off the table this season.

Did you seriously want to have a straightforward conversation about the litigation? Because in light of the paucity of comments about that, and the abundance of comments which do no more than riff off of the theme in the post's title regarding a link between hope and deception, yes, I think my contrarian contribution does make for a productive one when put up alongside "what others have said" about hope.

I dunno... I probably should have restricted my initial comment to a reference to any of the generic and interchangeable leading figures of the GOP, with a sign that says "ANTI-HOPE" under them and left it at that.

Did you seriously want to have a straightforward conversation about the litigation?

Of course not silly-but I'm sure there are licensed attorneys here who would be glad to do so. However, as the litigation is still ongoing, I doubt anyone here is privy to all the necessary facts, and if they are they're certainly not going to talk about it.

As for your contrarian impulses- you run with that. However, as I've told you before, I have little patience for someone who is contrarian for its own sake. The world is filled enough with impassioned people on both sides to have to suffer fakers.

In Photoshop, I took the photo, made a layer of it, and laid it over the poster. It is an exact copy, it lines up almost perfectly. I assume Fairey traces photos when making the stencils he works from. This is not the same as merely altering a photo through a computer program.

I'm not sure what I think. There have been hundreds of thousands of photos taken of Obama. Fairey picked one and used it. However, before Fairey iconized it, did anyone see that photo as the greatest picture of Obama ever, something unique, like the picture of the sailor kissing the woman in Times Square on VE Day, or JFK Jr saluting at his father's funeral? Not really. If you took 100 photos of Obama, one would probably look just like this.

MUL...You seem to be a intrigued today with the Nazi comparisons made by this or that commenter to Obama's method of Crisis Governing. The reason may be that Obama recognises no inherent limits in his governing style. He takes advantage of every opportunity to assert personal control over another area of American life: Banks, Mortgage Brokers, Investment Bankers, an Industrial Corporation, and upcoming all medical care and all energy usage decisions. But there is no sense of his acting to restore our way of life. There is only a sense that he is an undertaker burying it for the good of the world's people. That leaves a big void and a wonder how do we find an acceptible new leadership form to replaces the traditional Constitutional role of an American President.There is only a single answer that seems to make sense, and that is the role of a benevolent king. The last time anyone saw a personal king ruling (and forbidding political opposition) was in Germany under the spell of an inspired mind control artist named Hitler. So when Obama shows the marks of such a ruling style he is also likely to be seen as a new version of Hitler. One thing is for sure and that is that Obama doesn't plan to allow a restoration of the American hegemony and world economic power that lasted from 1945, when Hitler lost, until 2009 when Obama won.

Obviously, this is also an occasion to craft jokes analogizing the Fairey mess to what the subject of the poster is doing, with all the usual sarcasm over the word "hope." Not that any of that mess is poor Obama's fault.

Anne, that is like saying it's not the porn industry's fault for using images of an underaged girl in their product. The Obamites knew of the questionable provenance of their poster..but the neo-Stalinist image of Black Messiah was such great eye candy and such a fundraiser - they cranked it into their fundraising machine and into a whole product line of Fairey's image on T-Shirts, coffee cups, i-phone screen images they licensened from Fairey.They (both Fairey & Team Obama)made millions off Garcia's work. Just as the porn industry made millions off Traci Lords lying about her age. A long trail that began when she was 12 and got state-issued ID saying she was 16 so she could work, then got her driver's license off that....and then as a spectacularly endowed and Very Eager 16-year old...showed porn industry owners she was someone with a 4-year work history since age (16) and had all the documents proving she was 19 going on 20.

Still the porn owners "bad". All Traci Lords movies had to be recalled and destroyed.Still Team Obama's "bad" - and they they had less of a claim of "innocence" than those in the Traci Lords scandal. They knew nearly from the beginning that there were problems with the Fairey poster. But millions in donations were flying in because of it, and Fairey-licensed products were selling like hotcakes at Obama rallies, Parties organized to declare attendees were with The One, and online.

Of course, the Lords analogy breaks down in several areas - it wasn't copywright law, and it doesn't get into matters of people inspired to artistically respond to a mass media product....unless you count those inspired to create scenes of willing women being triple-penetrated by well-endowed black men while wearing feather masks and in a hydraulically operated special chair meant to "open up" new, exciting angles of diddling..

Still, it is about millions in product that some argue never should have been made, but since it was and many profited off it, where the financial damages & restititution lie.

(Note: Traci Lords went on to be a moderately successful mainstreaam actress and bookwriter.)

(2nd Note - when it comes to Presidents, they have to take the hit for what their Team does, even what people outside their control do. Bush didn't "murder" troops or Iraqis in his war - his noble freedom-loving!! Iraqis did that. Bush didn't nearly destroy the financial system...the NYC financiers he trusted too much did that. Still his bad. A reality the Boy King is still assimilating..)

************Yes, there is also an element of absurdity in this, captured well by Chip Ahoy at 1:03PM.

As a professional illustrator, it was my impression, when I saw Sheperd Fairey's poster and the photograph it was based on, that he had scanned the photo and used Photoshop techniques to colorize it in a striking way. In other words, it doesn't look as if he used the photo as a reference, or a starting point, but mechanically reproduced it in altered form.

So, what is really being alleged is that Fairey created an unauthorized derivative work of the AP photo. I don't really think that it makes much difference in the analysis whether he used the photo as a reference, traced over the photo, or "Photoshopped" it. You still have a derivative work, and authorizing such is one of the exclusive rights of a copyright owner.

And, realistically, it doesn't affect the Fair Use analysis either. This admission may prejudice the judge against him (they really don't like to be lied to, or see actual lying in cases before them).

My guess is that it will be close, either way. As probably everyone here knows by now, there is a (statutory) four factor balancing test, and some of the factors seem to lean one way, and others the other way.

MUL...You seem to be a intrigued today with the Nazi comparisons made by this or that commenter to Obama's method of Crisis Governing. The reason may be that Obama recognises no inherent limits in his governing style.

The other thing to keep in mind is that, except for the nationalistic part, Obamaomics is not that dissimilar to the Fascist/Nazi socialist model of economics. Indeed, I would suggest that it is closer to that model of socialism than to the Marxist model. I put "Fascist" first, since a lot of the Nazi model seems to have been consciously modeled on Mussolini's Fascist economic model. As a note, I am using both terms to identify the corresponding economics practiced and preached during the 1930s up through mid-40s by Italy and Germany.

TG, the minute Obama starts actually revoking you of any of your individual rights, the way Bush did, will be the minute that it makes sense to entertain comparisons of him governing like a monarch in any manner other than style.

And the minute concentration camps are built for the purpose of rounding up undesirables and committing mass exterminations will be the minute that analogies to Hitler or the Nazis serve any purpose other than to discredit the person making the analogy.

I note, for the record, that "Hitler" does not equate to monarch.

Although you did note the departure of course from America's interest in global domination in the sense that other empires, including Germany, pursued it.

Is it possible, just for a moment, that those here who pursue discussions of economics with an eye to categorizing every move Obama makes within nine months of a crisis that he did not bring about, as part and parcel of a purely ideological agenda - is it possible that they are the ideologues? Is it possible that their disagreements with mainstream economics makes them opposed to an empirical approach to the matter? Is it possible, just for a moment, that that they are the ones who seek to politicize the field?

It might cause one mental anguish, disappointment, despair, to realize just how deep is the hole that the Republicans dug. But for Obama to point that out by consistently taking concrete steps to get us out of it, that isn't mind control. It may, however, amount to a wake-up call from the Rip van Winkle-type state of denial that the R's lulled themselves into.

No. Pouring cold water on a bunch of party-goers who have passed out on the floor, drunk on their own sense of power after partying for 12 years straight, that isn't mind control. Taking the drug away from the junkie doesn't amount to mind control. You can create your own inner reality as much as you want. Sobriety ain't mind control, though.

I think FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO will be controlling here -- Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in an another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. The AP can possess only a thin copyright in an image of Obama with his head cocked, because his facial features are factual, and not created by the AP photographer. Now, had the AP photographer carefully posed and lit Obama, gave him specific clothes to wear, immersed him in a tub of milk -- essentially made an Annie Leibowitz portrait of him - then the AP would have a strong copyright in that image.

MUL...So far Obama's smile and demeanor are as attractive to me as when he ran for election. Can he pass a Cap and Trade Tax to finish off America's economy while everyone gets Free Government Care that is worth what they paid for it? That is what I will watch for to see his intentions. I actually would like to see him have the guts to go ahead and openly declare Afghanistan is not where we chose to fight our battle with Islamic Guerrilla warriors. Why not just level with the public and do the right thing there. As to the Middle-east, he is carefully holding Israel's survival in his policy making hands, and if he sells them out to the Arabs plans for them, then that will convince me to never trust his gifted mind controlling smile again.

Gary, it is ok to make an honest mistake* and assuming his explanation is correct, he would have been fine if his attorneys had submitted a correction to the court and the AP when he realized his mistake. But allowing the false fact to remain uncorrected is a problem for him and altering documents to try and hide the mistake is a big problem--statements in papers are made under oath, just like testimony, and lying is perjury.

"That's how GHW Bush and I felt about Reagan and his voodoo economics, but we survived that, at the cost of increasing the national debt at a rate unheard of in peacetime."

It's interesting that this is the second time you have brought up Reagan and his voodoo economics to counter my point that I think Obama's economics are for shit. For the record, I never voted for Reagan.

And I'm not going to cut Obama slack just because we survived some harsh economic times in the past. He has to earn my respect, and with crap like "jobs created or saved", he isn't.

I've never felt the need to be an apologist for any administration, ever. And I'm not going to start now just because "the man" says I should have hope.

I was taught (by my non flatlander, non-hillbilly elders) that faith,hope and charity are cardinal virtues.

I was taught that our ancestors came to this country because it was the land of opportunity (read hope).

Mr. Fairey's crimes (or not) are his own. The "analogizing" is groundless and the feeble fuming of those who lost the last election and can't come up with anything positive that will help them win the next one.

MUL: "The characterization as an absolute evil of any and all politics not sufficiently to the right of "center", would qualify as an ideology according to almost any intelligent observer". I suppose if anyone had actually made such a claim, perhaps they might. But no one has, so you're still just shrieking nonsense ...again.

MUL: "..obsessive witch-hunts of such leftists and their "leftism"...Witch-hunts?The left is still fond of portraying the accurate accounting of history (i.e. 100 million dead by socialsim in the 20th century) as a hunt for 'witches'. The tactic was started by the NY Times under the execrable Walter Duranty, Stalin's apologist, and was cemented into its faith by Arthur Miller's The Crucible, as is still taught in our high schools.

What's not taught of course is that there were in fact communists in FDR's administration.

MUL: "I think I'm justified in using the term "utopian" as a metaphor"Well, you're wrong; completely and utterly wrong.

blake said... I think C4 is basically right, dubious porn analogy notwithstanding. (The industry figures, broadly speaking, it'll get away with it, or did figure that up to then.)

Blake, I would be the 1st to agree that my porn analogy is dubious! It was my tribute to Chip Ahoy's absurdist take on a serious matter of millions made off illegal exploitation...but even with that, the Fairey Affair is fundamentally absurd, given bigger problems. But - cutting to the chase - others made millions off Traci Lord's happily filled holes - and others made millions off Garcia's photos he licensed to AP. So pay the piper!

Right... just socialism? Or are you being honest and referring to the Chinese and Soviet, etc. varieties? Because I'd tend to think the totalitarianism might have had something to do with that. But maybe that's just me.

As for the rest of the history you cite, it makes for interesting coffee conversation. What is worth addressing however is the communists in FDR's administration. Unsurprising, considering that the U.S. hadn't yet made the Soviet Union its avowed enemy. And wholly unworthy of prosecution since there therefore wouldn't have been any basis for treasonous collaboration at that point.

If you're going to defend McCarthyism, it's best to stick to bringing up people who committed something other than just thought-crimes.

A last word on hope. The hope in our mind that all will turn out for our good in the end is a great defense against depression. False hope is from a fantasy, but real acceptance of the facts coupled with a hope for a good ending keeps our minds in the game that is really never over until the fat lady sings. We tend to accept defeat when we lose hope. But the aphorisms of George C Patton include the truth that a man is never beaten until he believes he is.

"Right... just socialism?Yes, just socialism; it's totalitarianism is inevitable, regardless of the flavor.

"the U.S. hadn't yet made the Soviet Union its avowed enemy". Communism was always antiAmerican, its aims revolutionary and unconstitutional. FDR was a fool not to recognize that the USA was Russia's enemy even when we had not yet acknowledged it.

"And wholly unworthy of prosecution"Treason always merits prosection. The CPUSA's aim and efforts were in fact to create communism in the US, to overthrow the US government.

"If you're going to defend McCarthyism", If you're going to deny that FDR had commies in his administration...

Hell's bells, man, his vice president was a communist (Henry Wallace).

FLS...Tojo was long since out of power before Stalin pushed his way into the Japanese end game. On March 11-12 1945 the B-29 fire bombing incindiaries raid in Tokyo burned, boiled, and suffocated more civilians and their homes than both Fission U-235 devices vaporized in Hiroshima and Nagasagi in August 1945 combined. But as late as June 1945 the Emperor was sending 2,000 suicide pilots out to kill 10,000 US sailors at Okinawa. The only thing that caused the maniac Emperor to stop the sacificial deaths for him was his belief that an Atomic Bomb could kill him too. The idea that the USSR might attack from the north had no influence on the Sun God.

If a puppet, why did the US keep him in power after the war? Why not try him for war crimes and execute him?

US needed transformation of Japanse power away from its military mindset and an acquiescent population. Trial and execution of the Sun God most likely would have accomplished at the very least guerilla warfare.

I noticed every quote you don't address directly, but instead use as a pivot for changing the subject - with the exception of the first one, which you respond to with an outright lie.

Anyone who can't see that the social democracies west of the iron curtain weren't and aren't totalitarian needs a better set of lenses.

And anyone who can't see the difference between holding a belief and actively plotting to violently overthrow the government needs to read the 1st amendment. Or if he's a sufficiently committed zealot he could just be honest and admit that he doesn't really care all that much for the first amendment.

Unless you want to see that guy prosecuted then I suggest you shut up with these conflations between beliefs and actions, or further risk exposing an endorsement of obviously biased application of totalitarian means for targeting opposition.

MUL...It is a rational position to support an international governance thru submitting the USA to the powers contained in a Treaty on Greenhouse Gases. Therefore President Obama is a rational democrat like President Zelaya in Honduras rationally wanted a Constitutional change made in Honduras to make himself King. The tradition of continued Democratic elections of their own government is what is at stake in both Countries. So far Honduras has more moxy than you believe rational Americans should be allowed to express. The Hondurans still value their Consttution and their private property rights. Why should Americans be ashamed of valuing theirs? Will you fight against the Obama's move to submit the USA's Consttutional government to an unelected UN Climate Change Ruling Counsel? Or are you happy to see that radical destruction just to get rid of all this warm winter weather we are having?

I'm not even sure of what you are asking anymore, TG. Climate change is a pragmatic problem, not an ideological problem. We (and, I believe, most rational people) believe it can be addressed through pragmatic, rational, constitutional means, and aren't just using it as a device to prevent people from owning property.

I often get the impression that these fears are based on some opposite motivation: the desire to regain power is so acute that any move Obama or anyone else makes to address problems like this (or any problem?) is seen as an opportunity to re-assert ideological or partisan principles that aren't even really being threatened, so far as I can see.

It's not as if most Americans are going to agree with a philosophy that says government is so hopelessly dangerous all the time that unless it sits back, pays politicians to do nothing (at taxpayer expense) so that they can gain influence and do no more than promote their own cronyism, while just watching the sorts of crises that the previous administrations precipitated, then totalitarianism is right around the corner. That's just not going to fly anymore.

As for this rallying cry on the part of the right which sees the signing of treaties (a practice even George Washington engaged in) as increasingly dangerous due to the greater levels of administrative complexity that accompany them, I can see a strong theoretical point to make. But again, where is the beef? An unelected council? Really? We're that close to throwing democracy away?

People should pick their battles wisely, lest every cri du coeur become seen as less a concern for constitutional principles and just an attempt to engage partisan impulses at the expense of doing anything to actually address the problems that the nation faces.

Given my antipathy towards Shepard Fairey (and Obama hagiography in general), I find myself surprised at feeling that I have to come to Fairey’s defense on this matter.Please see the following blog post:http://cannonfire.blogspot.com/2009/10/art.html

It’s not a simple matter of manipulating Photoshop filters. The graphic is a genuine work of art (even though I dislike it and campaigned against Obama).